How the House Intel Committee Broke Bad

It’s not just Devin Nunes. The House’s dysfunctional oversight has been decades in the making.

By MIEKE EOYANG

February 20, 2018

One committee’s leaders snipe at each other behind closed doors and trash each other openly on television. The other committee’s leaders pride themselves on mutual respect and rarely draw the media into their disagreements, to the extent there are any. One committee chairman has launched a parallel investigation into the FBI and the Department of Justice; the other has plowed ahead with what appears to be a serious look into what happened during the 2016 election. Both committees are run by Republicans. Both have been charged with leading the investigation into Russian meddling in U.S. politics, but their approaches have been radically, alarmingly divergent. Why? What makes the House and Senate intelligence committees—which were set up to improve congressional oversight in the wake of 1960s and ’70s-era abuses by the executive branch agencies—such different beasts?

The answer starts with Rep. Devin Nunes, but it doesn’t end there. For nearly a year now, those of us who want to get to the bottom of what happened in 2016 have been alternately baffled and outraged by the antics of Nunes, the chairman of the House Permanent Select Committee on Intelligence (HPSCI). Nunes, a California Republican and member of President Donald Trump’s national security transition team, showed signs early on that he was not conducting a normal investigation. He dashed off into the night, sneaking into the White House to view classified files, and then publicly claimed that the arcane process known as “unmasking” was used improperly—a claim rejected by his Senate counterparts and former administration intelligence officials. He then recused himself from HPSCI’s Russia investigation while the Ethics Committee looked into his behavior. Despite his recusal, he continued to investigate Russia matters, sending his staff to London to track down dossier author Christopher Steele and issuing subpoenas to some witnesses while denying others. He engineered the release of a memo claiming impropriety in the surveillance of former Trump adviser Carter Page that the president’s own FBI and Justice Department said were misleading. And then, amid the backlash, he threatened to build a wall at HPSCI to separate the Democratic and Republican staff. As a former HPSCI staffer, let me assure you—none of this is normal.

Story Continued Below

Meanwhile, over in the Senate, the Select Committee on Intelligence (SSCI) is running an investigation that seems to operate in an alternate universe of bipartisanship and common purpose. When Chairman Richard Burr (R-N.C.) and Vice Chairman Mark Warner (D-Va.) give rare public updates, they appear side by side at the podium. At the recent hearing on worldwide threats to the U.S., Burr thanked intelligence agency heads for their cooperation with the Senate’s investigation and noted, “The remarks of everyone who has come before us has commented on their [staffers’] professionalism, and at the end of eight hours they couldn’t tell who is a Republican or a Democrat. The effort to be bipartisan isn’t just public, it is private as well, and has permeated all our efforts, down to our staff.”

As stark as this distinction is, the House-Senate difference is not just a product of the different personalities of their respective chairmen. The roots of the current differences in the committee approaches can be seen in the history, rules and culture that govern each chamber’s approach to intelligence oversight. These two committees were born different.

***

It was Watergate, and the growing skepticism of government power that accompanied the scandal, that birthed the intelligence committees.

In 1973, CIA Director James Schlesinger, concerned by the burglars’ ties to the agency, directed his staff to compile a list of any activities they thought might violate the National Security Act of 1947. The resulting 693-page compilation, known as the “Family Jewels,” detailed the agency’s wiretapping of journalists (including future Fox News anchor Brit Hume), attempts to kill foreign leaders and surveillance of dissident groups. When the existence of the explosive document became public in 1974, along with the discovery that various members of Congress had been notified about it beforehand but had not followed up, lawmakers became determined to change their approach to oversight.

The Senate and House convened special investigative committees to look into these intelligence abuses. The Senate investigation, chaired by Frank Church, an Idaho Democrat, was evenly divided between Democrats and Republicans, with eight of each. Even though the members of the Church Committee had no prior experience in intelligence oversight, over the course of the investigation, it won the grudging respect of the intelligence agencies and produced 14 volumes of material covering 126 formal hearings and 800 interviews.

As with today’s House probe, the House investigation into the Family Jewels was not the model of oversight set by the Senate. Initially chaired by Rep. Lucien Nedzi of Michigan, the House’s investigation had partisan representation that mirrored the chamber as a whole, with nine Democrats and only four Republicans. Yet the House investigation was quickly bogged down by concerns that Nedzi had been aware of the compilation and was too soft on the CIA prior to the investigation’s start. After an effort from a vocal minority to remove him failed, Nedzi stepped down and was replaced by Otis Pike of New York.

The Pike Committee, as it then became known, was considerably more contentious. Its staff was considered more combative, but it was the release of the committee’s final report that poisoned relations with the intelligence community for years to come. Pike and his colleagues voted to release the report over the CIA’s objections, giving the agency only one day to comment on the 334-page report. Even though the House voted against releasing the report until the executive branch had a chance to review it, the report leaked to Daniel Schorr, a reporter who was on President Richard Nixon’s “Enemies List,” causing further rancor between the House investigators and the CIA. Although the House Ethics Committee conducted an investigation into the leak, the leaker was never found.

Like today, the Senate effort was bipartisan and serious. The House was a mess. And the stage was set for years of the same pattern.

***

Both the Church and Pike Committees recommended that their chambers establish permanent intelligence oversight committees, a break from the ad hoc nature of intelligence oversight of the pre-Watergate era. But they took vastly different tacks—with consequences we are still seeing now.

Church’s bipartisan approach was reflected in the structure of the SSCI. From its founding, committee membership was limited to 15 members, of which no more than eight could be from the majority party. In the absence of the chairman, the senior member of the minority would preside and is given the title vice chairman, not “ranking member,” as is common on other committees, indicating that the two leaders would be of common purpose in managing the committee.

The staff of the SSCI is unified, and even if a particular staffer is hired by a Republican or a Democrat, they are assigned a portfolio for which they support the entire committee. Each senator also has a designee who is responsible for serving that senator, which makes the senators able to reach judgments about intelligence matters that don’t rely on staff hired by the senior senator on their side, as is common in other committees. And by informal tradition, the majority and minority must reach consensus on any hire to the committee, encouraging professional, not political, hires. Finally, SSCI has strong prohibitions on discussing committee business outside of the committee, which discourages senators from taking their disputes public. Keeping committee business behind closed doors gives the illusion of bipartisan cooperation and agreement, even if there are fights inside their secure spaces.

But over in the House of Representatives, Pike’s contentious approach was reflected in the structure of HPSCI. The committee’s partisan distribution reflects the partisan ratios of the House at large, so when the partisan divides in the House are larger, HPSCI majority members have little incentive to listen to the concerns of the minority. Staff are hired by either the chairman or ranking member with no individual designees, leaving House members little support if they disagree with the approach of their party leadership, as is more often the case than is seen in public. And unlike the Senate, HPSCI guards its control over intelligence information. While the Senate will make classified information available to any senator, HPSCI votes on requests from House members to view classified information, and can withhold information or deny those requests, much to the frustration of other members of the chamber.

There is, however, one important thing the two committees share in common. In both chambers, the committee membership is selected by the leaders of their chambers—thus the designation as “Select Committees.” Ultimately, it is the participation of those individual people, chosen by their leaders, that has more impact on the committees’ operations than the structural factors I just laid out.

***

Here’s why the personalities of the people in charge matter so much: Because leaders—today, Paul Ryan, Nancy Pelosi, Mitch McConnell and Chuck Schumer—can pick whomever they want to serve on the two intel committees, membership is an inherently political choice. This means that, more than in any other part of Congress, the committees’ culture reflects the priorities of congressional leadership.

For their first few decades, the committees were models of bipartisanship and cooperation, but that culture broke apart slowly and unevenly. When the committees were first formed, their members were moderate members of the caucuses from which they came. Then, there was more ideological overlap, and many Southern Democrats were more conservative than Northern Republicans, so finding common ground came more naturally. But over time, partisanship in Congress became more intense, especially in the House.

The late Sen. Daniel Inouye (D-Hawaii), the first chair of SSCI, was known for his moderate tone and quiet support for national security, which he later demonstrated as chairman of the Defense Appropriations Subcommittee, which would fund the intelligence agencies. And for many years, Sen. David Boren (D-Okla.) served as SSCI chair, leading the committee through a period of bipartisan functionality even as the intelligence agencies were under scrutiny for their involvement in the guns-for-hostages scandal known as Iran-Contra. As partisan control of the Senate flipped back and forth between Democrats and Republicans, both sides had incentives to treat each other as they would want to be treated in the minority.

Across the Capitol, at first, HPSCI was led by moderate members known for their bipartisanship for many years. The first chairman, Rep. Edward Boland (D-Mass.), had shared an apartment with then-Speaker Tip O’Neill, who had promised the House that the new committee would conduct itself in a fair and nonpartisan manner. The low-key, controversy-averse Boland nevertheless authored the amendment prohibiting assistance to the Contras in Nicaragua, which was at the heart of the Reagan administration’s Iran-Contra scandal. Notable other HPSCI chairs known for their bipartisanship included Lee Hamilton (D-Ind.), who later became a 9/11 commissioner, and Dave McCurdy (D-Okla.), and even, for the beginning of his tenure as HPSCI chair, Porter Goss (R-Fla.).

But at some point after the Bush administration selectively used intelligence to make the case for war in Iraq, debates over intelligence became more partisan, as did the operations of the two committees themselves. On the SSCI, after the Democrats took control of the Senate, Dianne Feinstein (D-Calif.) became the chairwoman. While she’s viewed as a pragmatic, moderate senator—and her counterpart, Saxby Chambliss, later said they “‘gee-hawed’ so well together”—her investigation into the CIA’s Interrogation and Rendition Program began to show the partisan breakdown. The committee’s Republicans criticized the process and issued a separate report.

On HPSCI, under Goss and, in particular, under Chairman Pete Hoekstra (R-Mich.), the sense of bipartisanship began to break down, too. By the time Congress prepared to change hands after the 2006 election, the HPSCI staff infighting had become personal and vicious. New Speaker Nancy Pelosi picked Silvestre Reyes (D-Texas), a former border patrol agent inclined toward conciliation, to lead HPSCI, which was when I worked there. While there were occasional partisan fights, Chairman Reyes’ tenure saw a reduction in tensions.

When the House flipped to the Republicans, Speaker John Boehner selected Mike Rogers (R-Mich.) as chairman. Rogers and ranking member Dutch Ruppersberger (D-Md.) returned the committee to bipartisan operation. Rogers, a former FBI agent, and Ruppersberger, who frequently said he represented the NSA, were both inclined to put the needs of the intelligence agencies first. HPSCI’s report on Benghazi found no fault with the intelligence agencies in the events leading up to the attacks and declined to engage in the partisan posturing of the Benghazi Select Committee.

Which makes Ryan’s selection of Nunes—a former dairy farmer from central California with a reputation for partisan fighting, rather than someone with national security experience and an interest in consensus-building—all the more unfortunate. Nunes’ handling of the delicate and controversial Russia investigation has left the impression that he seems disinterested in focusing on Russia and the important counterintelligence questions to be answered.

Nunes’ lack of experience shows, too. In raising questions about unmasking, and in his bizarre focus on the FISA application on Carter Page, he has taken a complicated and arcane executive branch process and selectively focused on pieces that he considers outrageous while ignoring the context and internal checks already in place to evaluate whether or not those processes were actually abused. Nunes’ allegations were swiftly debunked, leaving him and those who supported his memo’s release looking foolish.

The consequences of Nunes’ partisan approach will poison relations between the House and the intelligence agencies for years to come. Intelligence professionals will fear that their nuanced judgments will be twisted to fit an agenda, or that sensitive information—and there is little more sensitive than a FISA warrant—will be disclosed to score partisan points. One consequence will be that the intelligence agencies will then resist their obligation to keep the committee fully and completely informed of their activities, frustrating the original purposes of oversight.

But ultimately, it is the chairs who have the greatest impact on the tone and proceedings of the intelligence committees. And it is the speaker of the House or the Senate majority leader who is responsible for the consequences of choosing a bad chair. They must ensure that the person is not just looking out for politics, but understands the role of oversight in a complex and delicate environment. And one hopes that they are making that decision with the nation’s interest, rather than their own political advantage, in mind.

Mieke Eoyang is vice president of the National Security Program at Third Way. She previously served as a professional staff member on a variety of national security-related congressional committees.